Eclipse Berry Farms LLC is taking the package for its new CalFruit grape tomato off the market after opposition from San Antonio-based Desert Glory, which claims the package is too similar to its trademarked NatureSweet Cherubs tomato package.

Eclipse Berry Farms removing product after challenge

Courtesy Desert Glory

Eclipse Berry Farms LLC is taking the packaging for its new CalFruit grape tomato off the market after a challenge from Desert Glory, which claimed it was too similar to its trademarked Cherubs packaging, shown above.

Oxnard, Calif.-based Eclipse Berry Farms’ CalFruit grape tomato package, which has a yellow plastic base and clear plastic top, should be phased out until Dec. 10, according to a
Desert Glory news release. The two companies reached an agreement Oct. 12, according to the release.

Late September, Desert Glory filed a lawsuit against Plant City, Fla.-based Ag-Mart Produce Inc., doing business as Santa Sweets Inc., for allegedly copying the same packaging design.

“We spent three years designing a package to convey our value to our customers,” said Bryant Ambelang, chief executive officer of Desert Glory, Sept. 20. “We want to make sure they’re not confused when someone else releases similar packaging.”

In that case, Desert Glory was asking not only for the packaging to be discontinued, but also for profits that Ag-Mart makes through use of the packaging and compensation for damage to Desert Glory and its brand reputation.

Desert Glory received trademark protection on its Cherubs packaging — which features a cylindrical plastic clear top on a circular yellow plastic bottom — December 2007, 14 months after it launched the product. It also holds a trademark for the Cherubs name, which it received in 2006.

Desert Glory is no stranger to the courtroom, successfully defending its trademark on its yellow placard and red net bag packaging for cherry tomatoes in the early 2000s. It has also filed a trademark on the packaging for its new Sunburst yellow cherry tomatoes, which Ambelang describes as being packaged in a starburst bowl.

When Desert Glory filed the lawsuit against Ag-Mart, company officials claimed they had not received any prior notice nor had they even received a copy of the lawsuit. According to the Oct. 14 news release about the Eclipse Berry Farms agreement, Ag-Mart had not responded to the lawsuit.